KOHL, MARTINEZ REINTRODUCE BILL ALLOWING NURSING HOME RESIDENTS TO HOLD FACILITIES ACCOUNTABLE FOR NEGLIGENT CARE
WASHINGTON - Today Senator Mel Martinez (R-FL) and U.S. Senator Herb Kohl (D-WI) reintroduced the Fairness in Nursing Home Arbitration Act to protect nursing home residents from losing the right to hold long-term care facilities accountable in court for negligent or abusive care. A version of the bill was approved by the Senate Judiciary Committee during the 110 th Congress.
"We are one step closer to giving nursing home residents and their families the peace of mind that their constitutional rights are protected," Senator Martinez said. "This effort to restore the original intent of arbitration laws will ensure that families will not have to choose between quality care and forgoing their rights within the judicial system. We must ensure that this vulnerable population is taken care of and preserve all of their rights in the event of abuse or neglect."
"This legislation is a narrowly targeted measure that protects nursing home residents, one of our nation's most vulnerable populations, from losing the right to hold nursing homes accountable in court for negligent or abusive care," said Senator Kohl. "Our bill will ensure that families have legal options when resolving disputes that can have far reaching consequences."
Last June, Senator Kohl chaired a joint Judiciary Committee-Aging Committee hearing on pre-dispute mandatory arbitration agreements that have become increasingly common in long-term care facility admissions contracts. By signing these agreements, residents and their families give up their right to hold a facility accountable in court for negligent or abusive care that results in serious injury or death. Instead, any dispute that arises between residents and the facilities is automatically subject to mandatory arbitration.
In recent years, many nursing home residents and their families have challenged arbitration agreements in an attempt to bring their claims for negligent or abusive care to court. Unfortunately, the courts are unable to protect the rights of residents, even when they signed arbitration agreements under duress, lacking the mental or physical capacity to understand the consequences and in other unconscionable circumstances.
The use of these agreements in the long-term care arena is particularly problematic because of the unique circumstances that surround admission to a facility. Often these facilities are a last resort for families and residents, and many times these decisions are made under desperate, and sometimes emergency, circumstances. Individuals and families have little or no opportunity to fully consider and understand the consequences of an arbitration provision buried within a 40 or 50 page admissions document that they are asked to sign during the admissions process. In many cases, individuals are unaware that they had signed an arbitration agreement.
The Fairness in Nursing Home Arbitration Act simply requires that agreements to arbitrate nursing home disputes be made after a dispute has arisen. The Act does not prohibit arbitration in nursing home disputes, but it will prevent a nursing home corporation with greater bargaining power from forcing residents and their families into arbitration through a contract entered into prior to a dispute. It will ensure that arbitration remains a voluntary forum to resolve disputes. The legislation has the support of more than 30 national consumer advocacy organizations, such as AARP, the National Consumer Law Center, and the Consumers Union, as well as over 80 state organizations.
Senator Martinez is the Ranking Member of the Special Committee on Aging. Senator Kohl is chairman of both the Judiciary Subcommittee on Antitrust, Competition and Consumer Rights and the Special Committee on Aging.
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